+(,121/,1(

Citation:
Caroline Vincent; Alene D. Aftandilian, Liberation or
Exploitation: Commercial Surrogacy and the Indian
Surrogate, 36 Suffolk Transnat'l L. Rev. 671
(2013)

Content downloaded/printed from HeinOnline

Sat Dec 8 11:03:35 2018

-- Your use of this HeinOnline PDF indicates your

acceptance of HeinOnline's Terms and Conditions
of the license agreement available at
https://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF

to your smartphone or tablet device
 LIBERATION OR EXPLOITATION:
COMMERCIAL SURROGACY AND THE
INDIAN SURROGATE
I. INTRODUCTION

Commercial surrogacy in India is currently estimated to

generate more than USD2 billion in revenue annually.' The
procedure that became legal in India in 2002 is different from
other countries which have adopted the same practice in one
very critical way-India does not strive to provide a rare solu-
tion for infertile couples, but instead seeks to maintain hegem-
ony in an increasingly viable industry. 2 This booming market
comes at a dangerous time because India has no laws in place to
protect the rights of the surrogate. 3 The Indian Government has
put forward a bill to legally codify the use of assisted reproduc-
tive technologies (ARTs), but this bill has neither become law
nor contains essential provisions needed to protect the rights of
surrogates.4 This piece will analyze those failures in light of rel-
evant international treaties to which India is a party, and iden-
tify key provisions that must be included in any legislation
enacted by the Indian government in order to adequately pro-
tect surrogates against human rights abuses.s

1. Associated Foreign Press, Wombs for Rent: Commercial Surrogacy Big Busi-
ness in India, THE EXPRESS TRIBUNE, Feb. 25, 2013, http://tribune.com.pk/story/
512264/wombs-for-rent-commercial-surrogacy-big-business-in-indial (discussing con-
cerns relating to booming surrogacy industry). Many ethical concerns have been
raised in regards to wealthy foreigners paying impoverished Indians to carry their
babies. Id. See also Raywat Deonandan, India's Assisted Reproduction Bill and
the Maternal Surrogacy Industry, 4 INT'L REv. Soc. Sci. & HUMAN. 169, 172 (2012)
(describing "leveraging of poverty" in Indian surrogacy market).
2. Wombs for Rent: Commercial Surrogacy Growing in India, ASSOCIATED
PREss, Dec. 30, 2007, http://www.foxnews.com/story/0,2933,319106,00.html#ixzz2PLR
mr5vp (raising concerns based on India's purpose behind permitting commercial
surrogacy).
3. See infra notes 43-44 and accompanying text (outlining proposed legislation
and non-binding regulations).
4. See generally MINISTRY OF HEALTH & FAMILY WELFARE, Gov'T. OF INDIA,
NEw DELHI, The Assisted Reproductive Technologies (Regulation) Bill 2010, availa-
ble at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%2OBilll.pdf [here-
inafter Assisted Reproductive Technologies Bill] (creating new regulations for ART
clinics).
5. See infra Parts I-III (using proposed Bill and international law to formulate
recommendations).
672 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol.36:3

II. INTERNATIONAL NORMS AND SURROGACY

Currently, no international treaty exists to regulate the

practice of surrogacy around the globe, which results in many
complex questions of private international law between states.6
Even within the United States, surrogacy laws differ from state
to state, creating complicated legal situations.7 In many coun-
tries, commercial surrogacy is completely banned, while in
others, such as India and Ukraine, it remains highly unregu-
lated, resulting in commercial surrogacy tourism.8 Women in
countries with limited regulations, often nations with very poor
populations, will enter into commercial surrogacy arrangements
that often violate their rights as women and workers as recog-
nized under international treaties and norms.9 These interna-
tional treaties should serve as a framework in evaluating the
rights and treatment of these women in underdeveloped, unreg-
ulated nations.o

6. Hague Conference on Private Int'l Law, Mar. 2011, Private International Law
Issues Surrounding the Status of Children, Including Issues Arising from Interna-
tional Surrogacy Arrangements, General Affairs and Policy Prel. Doc. No. 11 at 3,
available at www.hcch.net/upload/wop/genaff20llpdlle.pdf. The report notes that
the number of international surrogacy arrangements has increased dramatically in re-
cent years. Id. Many international surrogacy cases have focused on the concept of
legal parentage and the difficulties that arise relating to this concept. Id. at 4. Much
focus has been given to the immigration status and nationality of the children born
from these surrogacy arrangements. Id.
7. Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International
Surrogacy Between the United States and India, 39 CUMB. L. REV. 15, 25 (2009). Many
of the laws regulating surrogacy in the United States arise from different state court
decisions and legislative action. Id. at 25-26.
8. Id., at 24. Many states have taken steps to heavily regulate or ban interna-
tional surrogacy arrangements, including Italy, Germany, France, Switzerland,
Greece, Spain, Norway and New Zealand. Id. at 24-25. Most of Europe has banned
commercial surrogacy on the belief that it "commodifies women." See Barbara Stark,
TransnationalSurrogacy and InternationalHuman Rights Law, 18 ILSA J. INr'L &
Comp. L. 369, n. 9 (2012). In contrast, in Ukraine, Greece, India and Queensland,
surrogacy is generally legal. See Daniel Gruenbaum, Foreign Surrogate Motherhood:
Mater Semper Certa Erat, 60 AM. J. COMP. L. 475, n. 44 (2012). However, in some
states that permit surrogacy, such as Canada, Israel and the United Kingdom, it is
highly regulated and limited in scope. See Smerdon, supra note 7, at 25. The regula-
tions within these countries resulted from the work of national commissions that stud-
ied the practice of surrogacy. Id. The regulations were formed on public policy
concerns. Id.
9. See Nilanjana Roy, Protecting the Rights of Surrogate Mothers in India, N.Y.
TIMES, Oct. 4, 2011, http://www.nytimes.com/2011/10/05/world/asia/05iht-letter05.
html?_r=0 (identifying lower bargaining power of female surrogates).
10. See infra notes 11-13 and accompanying text (reviewing relevant interna-
tional law).
2013] LIBERATION OR EXPLOITATION 673

While no international treaty currently regulates surrogacy,

and in particular the treatment of women as surrogates, various
international treaties have specifically recognized and promoted
women's rights over the last thirty years.n Examples include
the right to be free from all forms of discrimination, the right to
adequate health care, the right to a family, and the protection of
reproductive rights.12 In countries where commercial surrogacy
is allowed, these basic fundamental rights, as enshrined in multi-
ple international treaties and conventions, should be protected
by domestic law and regulations.13
The Convention on the Elimination of All Forms of Dis-
crimination against Women (CEDAW) adopted by the United
Nations in 1979 sheds significant light on the need to address
women's rights on a global scale.14 The Convention broadly as-
serts to protect women's cultural, economic and social rights.15
The Convention takes particular notice of the right of pregnant
women to be free from discrimination.16 The Convention re-
quires that States take "all appropriate measures, including leg-
islation, to ensure the full development and advancement of
women, for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on a ba-
sis of equality with men."17 More particularly, the Convention
seeks to ensure for women "the right to protection of health and

11. Department of Economic and Social Affairs, Division For the Advancement
of Women, Convention on the Elimination of All Forms of Discriminationagainst Wo-
men, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#intro (discuss-
ing background of the Convention on the Elimination of All Forms of Discrimination
against Women).
12. Convention on the Elimination of All Forms of Discrimination against Wo-
men, Dec. 18, 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33 (1980) [hereinafter Convention];
International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16,
1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]; Interna-
tional Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force
Mar. 23, 1976) [hereinafter ICCPRI (detailing human and economic rights).
13. See Barbara Stark, TransnationalSurrogacy and InternationalHuman Rights
Law, 18 ILSA J. INT'L & Comp. L. 369, 372 (2012) (stating basic internationally recog-
nized human rights should be applied to domestic surrogacy laws).
14. See Convention, supra note 12 (noting significance of Convention on wo-
men's rights).
15. Id. at pt. I, art. I (stating wide scope of Convention on rights of women).
16. See Stark, supra note 13, at 372 (discussing need to apply international trea-
ties to domestic law in regards to commercial surrogacy).
17. See Convention, supra note 12, at pt. I, art. 3 (stating signatories' obligations
towards enforcing women's rights).
674 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 36:3

to safety in working conditions, including the safeguarding of

the function of reproduction."Is Article 16 of the Convention
further requires states to "take all appropriate measures to elim-
inate discrimination against women in all matters relating to
marriage and family relations." 9
In addition to the Convention, the International Covenant
on Civil and Political Rights (ICCPR) plays a vital role in pro-
moting human rights as they regard commercial surrogacy. 20 In
1976, the United Nations adopted the ICCPR, recognizing the
most basic human rights, such as the right to life, as fundamental
rights shared by humanity as a whole.2 1 Article 1 lays out the
fundamental principle that all people have "the right of self-de-
termination."22 The ICCPR holds that by virtue of the right of
self-determination, people can "freely determine their political
status and freely pursue their economic, social and cultural de-
velopment."23 Additionally, people have the right to dispose of
their natural wealth and resources based upon the principle of
mutual benefit. 24 As a result, it is prohibited under the ICCPR
for someone to be required to perform compulsory labor. 25
Alongside the ICCPR, the International Covenant on Eco-
nomic, Social and Cultural Rights (ICESCR) came into effect in
1976.26 Ratified by 160 states, the ICESCR is a comprehensive,
globally accepted international instrument on workers' rights. 27
The ICESCR recognizes the right of all people to choose work
freely and to work under just and humane conditions. 28 Most
notably, the ICESCR requires "safe and healthy working condi-

18. Id. at pt. III, art. 11(f) (stating Convention's requirement of safe working
conditions for women).
19. Id. at pt. IV, art. 16 (focusing particularly on rights of women in familial
relations).
20. See ICCPR, supra note 12 (noting relation between ICCPR and surrogacy).
21. See ICCPR, supra note 12 (detailing purposes of ICCPR).
22. Id. at pt. I, art. 1, no. I (signaling importance of self-determination under
international law).
23. Id. (noting rights stem from general right of self-determination).
24. Id. at pt. I, art. 1, no. 2 (stating right to contract for mutual benefit).
25. Id.
26. See ICESCR, supra note 12 (noting history of ICESCR).
27. Gillian MacNaughton & Diane F. Frey, Decent Work for All: A Holistic
Human Rights Approach, 26 AM. U. INT'L L. REv. 441, 447 (2011) (demonstrating
wide international acceptance of covenants in ICESCR).
28. ICESCR, supra note 12, at pt. Ill, art. 6(1); MacNaughton & Frey, supra note
27, at 444.
2013] LIBERATION OR EXPLOITATION 675

tions."29 Further, parties to the ICESCR must recognize "the

right of everyone to an adequate standard of living for himself
and his family, including adequate food, clothing and housing
and to the continuous improvement of living conditions."30

III. COMMERCIAL SURROGACY IN INDIA

A. The Indian Surrogate

India's commercial surrogacy market was valued at approx-
imately USD2.5 billion in 2012.31 The cost of utilizing a surro-
gate is estimated at USD12,000, which includes medical
expenses and the surrogate's fee. 3 2 The same procedure in the
United States can cost USD200,000.33 While India may have be-
come one of the world's largest economies, poverty remains
rampant. 34 In 2010, thirty-three percent of the population was
living below the international poverty line of USD1.25 a day,
with an average national annual income of USD1,260 per per-
son. 3 5 By these simple estimates, it is no wonder why so many
come to India from across the world to pursue surrogacy, and
why so many Indian women are willing to carry another's
baby. 36
This somewhat novel business opportunity comes with its
own costs. 3 7 On a macro level, critics argue that promoting com-

29. ICESCR, supra note 12, at pt. III, art. 7(b) (stating humane working condi-
tions are a human right).
30. Id., at pt. III, art. 11 (detailing basic customary human rights).
31. Cosima Marriner, Booming Surrogacy Demand Sparks Exploitation Fears,
SYDNEY MORNING HERALD, Sept. 2, 2012, http://www.smh.com.au/national/booming-
surrogacy-demand-sparks-exploitation-fears-20120901-25742.html (identifying
strength of industry).
32. Abigail Haworth, Surrogate Mothers: Womb for Rent, MARIE CLAIRE, July
29, 2007, http://www.marieclaire.com/world-reports/news/surrogate-mothers-india (re-
porting growing number of Indian women desiring employment as surrogate because
of attractive fee).
33. Marriner, supra note 31 (noting high demand of surrogacy in India because
of comparatively high costs elsewhere); but see Stephanie M. Lee, Commercial Surro-
gacy Grows in India, S.F. CHRON., Oct. 20, 2012, http://www.sfgate.com/health/article/
Commercial-surrogacy-grows-in-India-3968312.php#ixzz2Q08ghU9E (finding price of
surrogacy in United States to range from USD60,000-150,000).
34. Lee, supra note 33 (identifying India's extreme poverty despite having fourth
largest economy).
35. Id. (supporting proposition with economic values).
36. See supra notes 31-35 (matching supply with demand).
37. See Surrogate Motherhood in India, https://www.stanford.edu/group/women-
scourage/Surrogacy/debate.html (last visited June 21, 2013) (outlining pros and cons
of commercial surrogacy in India).
676 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 36:3

mercial surrogacy in a country with no regulatory oversight may

lead to "baby farms." 38 India is already home to other human
rights abuses, making exploitation all the more likely. 39 On a
micro level, surrogacy contracts place many of the surrogates'
health in peril.40 Notably, many medical practices in the surro-
gacy clinics, such as implanting more than four embryos in a sur-
rogate and requiring surrogates to undergo nonemergency
caesareans at the direction of the commissioning parents, are
universally seen as bad for the health of the mother.41 Addition-
ally, the surrogate's psychological well-being is threatened when
forced to relinquish the child to the commissioning parents, ab-
sent receiving any counseling throughout their course of em-
ployment, or after giving birth.42

B. India's Surrogacy Regulation

Since the legalization of surrogacy in India promoted medi-
cal tourism, the country has failed to enact any laws regulating
the practice.43 Most recently, in 2010, India's Ministry of Health

38. Id. (identifying potentially dark future for surrogacy). Opponents of com-
mercial surrogacy argue that mass baby production centers do not seem unrealistic
when contracting surrogates have low bargaining power in an unregulated market.
Id.
39. See Trafficking of Girls Serious Violation of Human Rights, says NHRC, THE
INDIAN EXPRESS, Apr. 30, 2013, http://www.indianexpress.com/news/trafficking-of-
girls-serious-violation-of-human-rights-says-nhrc/1 109504/#sthash.5KSIE8Bx.dpuf
(noting hundreds of tribal girls being trafficked); Simon Robinson, India's Black Mar-
ket Organ Scandal, TIME, Feb. 1, 2008, available at http://www.time.com/time/world/
article/0,8599,1709006,00.html (identifying black market organ transplant ring har-
vesting kidneys from poor Indian laborers).
40. See Kishwar Desai, India's Surrogate Mothers are Risking Their Lives. They
Urgently Need Protection, THE GUARDIAN, June 5, 2012, http://www.guardian.co.uk/
commentisfree/2012/jun/05/india-surrogates-impoverished-die (describing risks Indian
women face during their commercial surrogacy contracts).
41. Id. (detailing medical malpractice in surrogacy clinics).
42. See Ruby L. Lee, New Trends in Global Outsourcing of Commercial Surro-
gacy: A Call for Regulation, 20 HASTINGS WOMEN's L.J. 275, 298 (2009) (noting lack
of regulations requiring psychological counseling for surrogate in India). In contrast,
Israel's surrogacy laws require counseling for surrogate for six months post giving
birth. Id. at 297.
43. See Cara Luckey, Commercial Surrogacy: Is Regulation Necessary to Manage
the Industry?, 26 Wis. J. L. GENDER & Soc'Y 213, 226 (2011) (portraying need for
regulation where fertility clinics act like brokers for surrogacy transaction); Sarah
Mortazavi, It Takes a Village to Make a Child: Creating Guidelines for International
Surrogacy, 100 GEO. L.J. 2249, 2271 (2012) (identifying surrogacy as large portion of
medical tourism industry despite no applicable law). However, in 2005, the Indian
Council of Medical Research (ICMR) promulgated non-binding guidelines to regu--
2013] LIBERATION OR EXPLOITATION 677

and Family Welfare, in conjunction with the Indian Council of

Medical Research, proposed the Assisted Reproductive Tech-
nologies Bill.44 The stated purpose of the Bill is to "provide for
a national framework for the accreditations, regulation and su-
pervision of assisted reproductive technology clinics, for preven-
tion of misuse of assisted reproductive technology, for safe and
ethical practice of assisted reproductive technology services and
for matters connected therewith or incidental thereto." 4 5 The
drafting committee of the Bill, consisting predominantly of med-
ical professionals, identified the "exponential growth of infertil-
ity clinics" and public interest angst generated from the need to
protect the "medical, social and legal rights of those con-

late the use of ART clinics. Id., at 2272. See also Usha Rengachary Smerdon, Cross-
ing Bodies, Crossing Borders: InternationalSurrogacy Between the United States and
India, 39 CUMB. L. REV. 15, 35 (2009). Among several provisions relating to surro-
gacy, these guidelines request that a woman give informed consent to enter into a
surrogacy contract, witnessed by one who is not associated to clinic and that ART
clinics not involve themselves in compensation negotiations, or any aspect of deter-
mining payments to surrogates, between contracting parties. Id., at 38. See generally
Indian Council of Med. Res., Nat'l Acad. of Med. Sci., National Guidelines for Ac-
creditation, Supervision & Reg. of ART Clinics in India (2005) availableat http://icmr.
nic.in/art/art clinics.htm.
44. See generally Assisted Reproductive Technologies Bill (establishing regula-
tory framework to oversee use of ART clinics). The ICMR proposed an earlier ver-
sion of the legislation in 2008. In both versions, Section 34 focuses on rights and
duties of parties as they relate to surrogacy. The Assisted Reproductive Technologies
(Regulation) Bill (Indian Council of Medical Research, Proposed Draft 2008) [herein-
after 2008 Draft Bill] available at http://www.prsindia.org/uploads/medialvikasdoc/
docs/1241500084--DraftARTBill.pdf. Key differences in these sections include the
permissible age of a surrogate and number of times she can contract to be one. Id.
The 2010 version added two provisions, whereby a surrogate shall be duty-bound not
to engage in any act that would harm the fetus during pregnancy or child after birth,
along with another requiring the commissioning parents to provide adequate insur-
ance to the surrogate and the child. Id. The later Bill also provides more details on
how a foreign party seeking the surrogacy must prove that their native country per-
mits surrogacy and will permit entry to the child born through surrogacy. Id.
45. Assisted Reproductive Technologies Bill (declaring purpose behind bill).
The Preamble provides the following outline of the Bill:
The bill details procedures for accreditation and supervision of infertil-
ity clinics (and related organizations such as semen banks) handling
spermatozoa or oocytes outside of the body, or dealing with gamete
donors and surrogacy, ensuring that the legitimate rights of all con-
cerned are protected, with maximum benefit to the infertile couples/
individuals within a recognized framework of ethics and good medical
practice.
Id. at pmbl.
678 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 36:3

cerned."46 While its effort is laudable, the Indian Parliament has

still not passed the Bill, and the document focuses primarily on
the commissioning parents, failing to address the committee's
vital concerns for surrogates. 47
The first sixty percent of the Bill creates regulatory authori-
ties to oversee the use of ARTs and outlines the standards and
duties of clinics utilizing these devices.4 8 The Bill also identifies
offenses and penalties associated with a violation of its provi-
sions; it states that anyone who is employed by a clinic and con-
travenes any of the Bill's provisions may be imprisoned for a
term of three years, fined, or both.49 Subsequent convictions
may result in a five-year sentence, additional fine or combina-
tion thereof.50 It also provides a catchall provision for anyone
that violates any portion of Bill, whereby such individual may be
imprisoned for up to three years or fined.51
The Bill dedicates one of nine chapters to the rights and
duties of parties involved with the use of ARTs. 52 Within the
chapter, only one section focuses on surrogacy.53 The Bill pro-
poses that all of the surrogates expenses relating to the preg-
nancy be borne by the couple or individual commissioning the

46. Assisted Reproductive Technologies Bill (explaining committee's underlying

concerns). The committee noted that in the last twenty years there has been an expo-
nential growth of infertility clinics utilizing ARTs, including use of surrogate mothers,
because anyone can open infertility or ART clinics and "no permission is required to
do so." Id. at pmbl.
47. See Devadatt Kamat & Lavanya Regunathan Fischer, India: Motherhood or
Motherload? India's Unregulated Surrogacy, WOMEN'S FEATURE SERV., Oct. 5, 2012,
availableat http://www.highbeam.com/doc/1P3-2802997841.html (identifying deficien-
cies in Bill); see also Assisted Reproductive Technologies Bill, supra note 4, at ch. VII
(articulating rights and duties of parties using ARTs).
48. See Assisted Reproductive Technologies Bill, supra note 4, at ch. II-VI (es-
tablishing authorities to monitor ART clinics). The Bill creates multiple levels of su-
pervision, including a National Advisory Board, State Boards and Registration
Authority. Id. at ch. II. The Bill also provides procedures for registration and com-
plaints, duties of ART clinics, sourcing and handling of gametes and embryos and
regulation on research. Id. at chs. III-VI.
49. Id. at ch. VI, no. 38(1) (articulating punishment associated with violating
Bill).
50. Id. (adding penalty for repeat offenders).
51. Id. at no. 40 (providing punishment for offenses not listed elsewhere).
52. See Assisted Reproductive Technologies Bill, supra note 4, at ch. VII (estab-
lishing rights and duties of patients, donors, surrogates and children).
53. See generally Assisted Reproductive Technologies Bill, supra note 4. See id.
at ch. VII, no. 34 (outlining rights and duties in relation to surrogacies). The Bill
requires the couple or individual seeking surrogacy and the surrogate mother to enter
into a surrogacy agreement, which is legally binding. Id. at ch. VII, no. 34(1).
2013] LIBERATION OR EXPLOITATION 679

surrogacy, and that "the surrogate mother may also receive

monetary compensation from the couple or individual, as the
case may be, for agreeing to act as such surrogate" (emphasis
added).54 Surrogates hired by a foreign individual or couple
must appoint a local guardian to be legally responsible for tak-
ing care of the surrogate during her pregnancy and until the
child or children are delivered.55 Absent these three clauses, the
remainder of the section articulates the duties of the surrogate,
which include, but are not limited to the following: surrogates
must be medically tested for any diseases which may endanger
the health of the child; if married, the surrogate must receive
consent from their spouse to enter into the surrogacy contract;
and the surrogate must relinquish all parental rights over the
child.56

IV. KEY CONCERNS AND RECOMMENDATIONS

Although the Bill makes great progress in addressing the

need of commercial surrogacy regulation in India, it falls short
in a multitude of ways. The proposed Bill fails to uphold very
basic and just labor principles enshrined in both the ICCPR and
ICESCR.57 Most notably, the Bill does not address the inequal-
ity of bargaining power that currently exists when wealthy indi-
viduals and poor women negotiate a commercial surrogacy
contract in India.58 Due to the severe disadvantage of the poor,
surrogates in India will often enter into one-sided agreements
that result in a benefit not equal to their labor, contrary to their

54. Assisted Reproductive Technologies Bill, supra note 4, at ch. VII, nos. 34(2)-
(3) (proposing delineation of costs associated with surrogacy). These costs include
expenses related to the pregnancy, both during and after delivery, along with any
insurance costs if available. Id. at ch. VII, no. 34(2).
55. Id. at ch. VII, no. 34(19). The guardian's responsibilities to the surrogate last
until the baby is delivered to the couple. If the foreign couple or party does not
accept delivery of the baby, the guardian is legally obligated to take delivery of the
baby, but is free to hand him or her over to an adoption agency. Id.
56. Id. at ch. VII, nos. 34(6), (16), (4) (outlining duties of surrogate).
57. See supra notes 22-25, 27-30 and accompanying text (detailing key provisions
of ICCPR and ICESCR).
58. See Lee, supra note 33 (discussing effect of extreme poverty in India on com-
mercial surrogacy industry). Women who become surrogates are often desperate to
support themselves and their families; meanwhile the women who seek their services
are often wealthier. See supra note 1 (discussing ethical issues regarding wealthier
women hiring poorer Indians as surrogates).
680 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 36:3

rights under the ICCPR and ICESCR. 5 9 Additionally, as many

of the surrogates are uneducated, they may have difficulty un-
derstanding the terms and conditions of the contract. 60 These
women should have an independent third party review their sur-
rogacy contracts and, in the event that an individual cannot af-
ford one, the Bill should require that they be provided with
one. 61 This third party can consult with the surrogates to ensure
that the surrogates are not being economically exploited and are
receiving fair compensation for their labor as required under
these treaties. 62
Further, the proposed Bill violates international law when it
fails to provide for the health and well-being of surrogates. 63
The Bill places great emphasis on protecting the health of the
child born to the surrogate, but very little on the health of the
surrogate herself. 64 Beyond the physical wellness of the surro-
gates, the Bill fails to protect the mental well-being of surro-
gates, both during and after their pregnancies.65 This failure
violates the CEDAW and ICESCR, which both require healthy
and safe working conditions. 66 In order to adequately protect
the surrogate's health rights, the clinics should be regulated and
required to provide certain levels of mental and physical care in
order to ensure the well-being of the surrogates. 67 Through gov-

59. See supra note I (noting lack of parity in bargaining power between surro-
gate and commissioning parent).
60. See supra notes 1, 33 (discussing compromised position of women who be-
come surrogates).
61. See supra notes 12, 22-29 and accompanying text (noting key provisions of
ICCPR and ICESCR relating to economic freedom and covenants).
62. Id. (describing right to freely determine one's own economic future).
63. See supra notes 4, 53 and accompanying text (noting only one provision of
proposed law focuses on surrogates); supra notes 38-42 and accompanying text (de-
tailing various physical and psychological harms to which surrogates are exposed).
This lack of regulation is contrary to the requirements of the ICCPR and ICESCR.
See supra notes 12, 29-30 and accompanying text.
64. See supra notes 36-41 and accompanying text (detailing lack of both physical
and psychological healthcare in India for surrogates). See also supra notes 4, 48-50
and accompanying text (discussing where Bill discusses surrogates). The Bill only
requires that the surrogates be medically tested to protect the child, not to protect the
health of the surrogate. See supra notes 4, 56 (listing duties of surrogate).
65. See supra note 42 and accompanying text (noting lack of psychological care).
66. See supra notes 18, 29 and accompanying text (detailing guaranteed protec-
tions of safe and healthy working conditions for women).
67. See supra note 42 and accompanying text (comparing treatment require-
ments in Israel to those in India). There is a need for psychological counseling post-
birth. Id.
2013] LIBERATION OR EXPLOITATION 681

ernmental oversight of the clinics, bad practices can be exposed

and the rights of the surrogates protected. 68
The Bill should create a regulatory scheme by which Indian
surrogates can voice complaints.69 While the Bill creates various
boards and a Registration Authority to regulate ART clinics, it
fails to advance a way for surrogates to issue complaints.70
Where the threat of abuse is high, it is important for surrogates
to have a confidential and safe way to articulate health and
safety concerns.71 The drafters of the Bill would be wise to ei-
ther create a distinct board to focus on the surrogates' needs, or
articulate a clear method for surrogates to seek help through
existing boards. 72
A final concern resulting from the proposed Bill is that it
provides for lenient punishments for those who violate its provi-
sions.73 Depending on the offense, a perpetrator may either re-
ceive a fine or be imprisoned for three years. 74 Those who
commit subsequent offenses may face a five-year sentence or
additional fines.75 It is unlikely that such lax penalties will deter
any individual from the large profits that can be achieved
through exploiting Indian surrogates. 76 India is already home to
many human rights abuses, creating a volatile environment for
commercial surrogacy. 77 Therefore, it is all the more necessary
to not only implement strict laws to regulate the commercial
surrogacy industry, but enforce harsh penalties for those who
disobey them.78

68. See supra notes 61-62, 67 (discussing suggested oversight needed).

69. See supra note 48 and accompanying text (identifying portions of Bill ad-
dressing regulatory bodies).
70. Id. (providing Bill's required supervision of ART clinics).
71. See supra notes 18, 25, 28-29 and accompanying text (referencing need to
provide safe and healthy working conditions under international law).
72. See supra notes 18, 25, 28-29, 48 and accompanying text (providing Bill's reg-
ulatory framework and requirement for workers to have humane working conditions).
73. Supra notes 49-51 and accompanying text (outlining consequences of violat-
ing Bill).
74. See Assisted Reproductive Technologies Bill, supra note 4, at ch. VIII, no.
38(1) (describing possibility of fine or imprisonment).
75. See id. (discussing punishment for repeat offenders).
76. See supra notes 31-35 and accompanying text (using numerical data to pro-
ject likely abuse).
77. See supra note 39 and accompanying text (identifying other human rights
abuses in India).
78. See supra notes 39, 48-50 and accompanying text (demonstrating human
rights concerns not adequately protected against by drafted bill).
682 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 36:3

V. CONCLUSION
India's booming commercial surrogacy industry continues
to grow and provide impoverished Indian women with employ-
ment opportunities. While some view this development as a
win-win, both for infertile couples seeking more cost effective
solutions and Indian women needing income, a lack of regula-
tion can quickly turn this prospect into a nightmare. In order to
ensure that the women of India's human rights are protected
and guaranteed, as enshrined in various conventions and trea-
ties, the Assisted Reproductive Technologies Bill must be
adopted with a few adjustments. Only through adequate gov-
ernmental oversight will woman truly be protected from the
dangers inherent in all commissioned pregnancies.

Caroline Vincent and Alene D. Aftandilian